Mixed Race Studies

How Mixed-Race Politics Entered the United States: Lydia Maria Child’s ‘Appeal’

ESQ: A Journal of the American Renaissance
Volume 56, Number 1, 2010 (Nos. 218 O.S.)
pages 71-104
DOI: 10.1353/esq.0.0043

Robert Fanuzzi, Assistant Chair and Associate Professor of English
St. Johns University, Queens, New York

For scholars of the colonial and early national United States, it is difficult if not impossible to retell the story of social egalitarianism and political liberty without recounting the social, political, and legal codes governing the practice of miscegenation. Under both the colonial British regime and the post-Revolutionary political order of the United States, these laws and customs operated hand in hand with the equally determinate laws of slavery and citizenship, helping to decide who was a democratic subject and who was not.

In seventeenth- and eighteenth-century Virginia, prohibitions against mixed-race marriages and extramarital unions along with their mixed-race offspring helped to create a new, putatively classless caste system, which equated the dignity of free labor and property holding with a pure British ancestry and the indignity of coercive labor with an African ancestry. In doing so, these laws paved the way for a historic argument for civic equality that rendered the American colonist the genetic bearer of English liberty.  In the new American republic, miscegenation laws functioned even more transparently as citizenship decrees, stipulating the whiteness of politically enfranchised subjects and, often capriciously, the blackness of the enslaved or disenfranchised. The logical outcome of these laws, the “one drop of blood” provision, was a testament to the determination of the privileged caste to maintain an artificially scarce supply of citizens by keeping their legal, economic, and political assets from their mixed-race descendants.

Miscegenation laws and regulations played an equally formative role in the civic culture of the antebellum era, when social prejudice against race mixing helped to police civil relations and to foreclose the scope of civic activism…

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Preserving Racial Identity: Population Patterns and the Application of Anti-Miscegenation Statutes to Asian Americans, 1910-1950

Berkeley Asian Law Journal
Volume 9, Number 1 (2002)
pages 1-40

Gabriel J. Chin
University of Arizona James E. Rogers College of Law; University of Arizona School of Government and Public Policy

Hrishi Karthikeyan
New York University School of Law

This essay explores the relationship between Asian American population and applicability of anti-miscegenation laws to that group in the first half of the 20th Century, testing legal scholar Gilbert Thomas Stephenson‘s theory that racial restrictions would arise whenever non-whites of any race exist in considerable numbers. Several states prohibited Asian-white intermarriage even though the Asian American numbers failed even remotely to approach those of the white population in those states. These anti-miscegenation statutes were unique in the Jim Crow regime in the degree of specificity with which they defined the racial categories subject to the restrictions, using precise terms like Japanese or Mongolians, rather than broad terms like colored. Further, the number of statutes applicable to Asians more than doubled between 1910 and 1950, even though census data shows that the proportion of Asian population was stable or declining in these states, and in any event tiny.

The proliferation of anti-Asian miscegenation laws raises important questions about the racial landscape of our country during this period. Correlating census data with the development of anti-miscegenation statutes suggests that population does have an impact on whether states would restrict Asian marriage, but in a more complex way than Stephenson proposed. In all states in which Asian-white marriage was restricted by race, so too was African American-white intermarriage; no statutes targeted Asians alone. But in virtually all states restricting African American intermarriage where there was a discernable Asian population – 1/2000th or more – Asian intermarriage was also regulated. The combination of a state’s inclination to segregate, plus a visible Asian population, reliably predicts when Asians would be covered by a statute. This suggests that in the states where racially diverse populations were seen as threats appropriately subject to legal regulation, the nature of the problems presented by the various races was the same.

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American Mestizo: Filipinos and Antimiscegenation Laws in California

University of California, Davis Law Review
Volume 33, Number 44 (2000)
pages 795-835

Leti Volpp, Professor of Law
University of California, Berkeley

This essay interprets the legal history of efforts to prohibit intermarriage between Filipino men and white women in the state of California in the 1920s and 30s. I do this through examining both public discourse and legal discourse, in the form of advisory opinions of the California State Attorney General and the Los Angeles County Counsel, litigation in Los Angles Superior Court and the California Court of Appeals, and state legislation.

Much scholarship examines antimiscegenation laws through the lens of presumptive heterosexuality, and gives enormous explanatory power to race in a way that ignores the role of class and gender. This paper argues that we need to examine the mutually constitutive nature of these forces in shaping antimiscegenation laws. Thus, I examine how the racial identity of Filipinos was shaped by assumptions about racialized sexuality, colonial relations between the United States and the Philippines, the importation of exploitable laborers without political rights, and the intertwining of gender and nationalism.

The question of whether Filipinos should be prohibited from marrying white women reached the California Court of Appeals in 1933 in the guise of the query as to whether Filipinos should be considered “Mongolian.” The state in 1880 and 1905 had prohibited the licensing of marriages between “Mongolians” and “white persons” and invalidated all such marriages. Subsequent legal challenges involving the right of Filipinos to marry whites betray enormous confusion as to whether Filipinos should be classified as “Mongolian,” or as a separate ethnological group, as “Malay.” This racial classification was put at issue in cases where Filipino/white couples sought to marry, and who therefore asserted that Filipinos were not “Mongolians”; in a case where a mother sought to stop her daughter’s marriage; in two cases where annulment of marriage was sought, one by a white woman, the other by a Filipino man; and in one case in which a prosecutor sought to void a marriage so a white wife could testify against her Filipino husband.

The positioning of Filipinos as “Mongolian,” or in opposition to “Mongolians” as the ethnologically different “Malay,” provides a narrative within which the contemporary identity of Filipinos is created. This history demonstrates that there is nothing natural or preordained about racial classification, and provides an example of how race is made.

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Blood Will Tell: Scientific Racism and the Legal Prohibition Against Miscegenation

Michigan Journal of Race & Law
University of Michigan Law School
Volume 5, Issue 2 (Spring 2000)
pages 560-609

Keith Edward Sealing, Dean of Students
Widener Law School, Widener University

Laws banning miscegenation endured in the colonies and the United States for more than 300 years. When the Supreme Court declared all such laws unconstitutional in Loving v. Virginia in 1967, sixteen such statutes and constitutional provisions were still in effect. Scientific racism determined a hierarchy within the White race that placed the Teutonic at the top, the Anglo-Saxon as the heir to the Teuton, and the American as the current leading branch of that line. Prior to the Darwinian revolution, two competing scientific theories, monogenism and polygenism, were applied to justify miscegenation statutes. The “monogenists” believed that all men descended from a single ancestor and were of the same species. This theory comported with the Bible and the story of Ham, as interpreted literally by the fundamentalists. The “polygenists” saw Blacks as a separate and inferior species descended from a different “Adam,” and, thus, saw slavery as qualitatively no different from the ownership of a horse, and miscegenation as approaching bestiality. These beliefs and attitudes endured well into the Twentieth Century, supported after 1900 by the eugenics movement. This article focuses on anti-miscegenation statutes as applied to former slaves and others of African descent, particularly in the South. This article first examines the miscegenation paradigm in terms of a seven-point conceptual framework that not merely allowed but practically demanded anti-miscegenation laws, then looks at the legal arguments state courts used to justify the constitutionality of such laws through 1967. Next, it analyzes the Biblical argument, which in its own right justified miscegenation, but also had a major influence on the development of the three major strands of scientific racism: monogenism, polygenism and Darwinian theory. It then probes the concept upon which the entire edifice is constructed—race—and discusses the continuing vitality of this construct. Next, this article turns to the major strands of scientific racism and briefly develops more modern theories that continued the racist tradition well into the Twentieth Century. The article then looks at the effects of scientific racism on the thoughts and actions of the founding fathers and the Reconstruction-era Congress before turning to the long line of state cases upholding miscegenation statutes, in part by relying on scientific racism. Finally, it discusses the cases that questioned the constitutionality of anti-miscegenation statutes, Perez v. Lippold and Loving v. Virginia.

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A Reappraisal of the Constitutionality of Miscegenation Statutes

Journal of the National Medical Association
Volume 51, Number 3
May 1959
pages 215-220

Orignially published in 42 Cornell Law Quarterly 208 (1957).

Andrew D. Weinberger, LL.B., D. HUM, Member of the New York Bar, New York City & Visiting Professor of Law
Nationzal University of Mexico

Today [in 1957], 21 States of the Union by statute forbid marriages on racial grounds. These statutes are neither uniform in the racial groups against whom the ban is applicable, nor in defining membership in the various ethnic groups. Thus, while in Utah white-Mongolian marriages are illegal and void, in North Carolina they are permitted. In Arkansas, where white-Negro marriages are void, a Negro is defined as “any person who has in his or her veins any Negro blood whatever.” In Florida, one ceases to be a Negro when he has less than “one-eighth of . . . African or Negro blood”; and in Oklahoma, anyone not of “African descent” is miraculously transmuted into a member of the white race.

The racial groups affected by such statutes include Mongolians, Malays, Hindus, Chinese, Japanese, Ethiopians, American Indians, Cherokees, Mestizos, Halfbreeds, and “the brown race.” The sole racial group (other than white persons) affected by all twenty-one statutes is the Negro…

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Engineering American society: the lesson of eugenics

Nature Reviews Genetics
Volume 1, November 2000
pages 153-158

David Micklos
DNA Learning Centre
Cold Spring Harbor Laboratory, New York

Elof Carlson, Professor Emeritus
State University of New York, Stony Brook

We stand at the threshold of a new century, with the whole human genome stretched out before us. Messages from science, the popular media, and the stock market suggest a world of seemingly limitless opportunities to improve human health and productivity. But at the turn of the last century, science and society faced a similar rush to exploit human genetics.  The story of eugenics—humankind’s first venture into a ‘gene age’ — holds a cautionary lesson for our current preoccupation with genes.

Eugenics was the effort to apply the principles of genetics and agricultural breeding towards improving the human race. The term “eugenics”— meaning well born —was coined in 1883 by Francis Galton, a British scientist who used data from biographical dictionaries and alumni records at Oxford and Cambridge Universities to conclude that superior intelligence and abilities were traits that could be inherited.

Most people equate eugenics with atrocities that were committed in Nazi Germany for the sake of racial purity. In this context, eugenics is easy to dismiss as purely aberrant behaviour. However, the story of eugenics in the United States is, perhaps, more important than that of Nazi Germany as a cautionary tale to take with us into our new century.  Here we describe the tale of the subtle ways in which the science of genetics was, by degrees, transformed from an agricultural experiment into a popular movement to engineer American society. The fact that eugenics flourished in the land of liberty, involved numerous prominent scientists and civic leaders, and made its intellectual home at the forerunner of the now prestigious Cold Spring Harbor Laboratory shows just how far America fell from grace during this period…

…Race mixing. Laws against interracial marriage had existed in some states since colonial times, but their number increased after the Civil War. The idea that race mixing, or miscegenation, causes genetic deterioration was proposed by Joseph Arthur Gobineau and other anthropologists in the late nineteenth century. It is worth noting that eugenicists’ conception of race included the classic divisions by skin colour, as well as differences in national origin.  Most lay-eugenicists subscribed to the Biblical idea of ‘like with like’ and that the ‘half-breed’ offspring of parents from two different races were genetically inferior to the parental stock. Davenport’s compilation in 1913 showed that 29 states had laws forbidding mixed-race marriages.  Although these laws were not always enforced, heavy fines and long prison terms showed how seriously American society considered miscegenation to be at that time.

As in the case of immigration restriction, eugenicists were more than willing to provide a supposed scientific rationale for existing
racial prejudice. In his influential book, The Passing of the Great Race, Madison Grant warned that racial mixing was a social crime that would lead to the demise of white civilization. Eugenicists actively supported strengthening pre-existing laws and enacting of new ones, including the Virginia Racial Integrity Act of 1924. The Virginia Act and all other similar state laws were struck down by the United States Supreme Court in 1967 in Loving versus Commonwealth of Virginia…

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Reconstruction, Segregation, and Miscegenation: Interracial Marriage and the Law in the Lower South, 1865-1900

American Nineteenth Century History
Volume 6, Issue 1
March 2005
pages 57-76
DOI: 10.1080/14664650500121827

Peter Wallenstein, Professor of History
Virginia Polytechnic Institute and State University

On the eve of Congressional Reconstruction, all seven states of the Lower South had laws against interracial marriage. During the Republican interlude that began in 1867-68, six of the seven states (all but Georgia) suspended those laws, whether through judicial invalidation or legislative repeal. Yet by 1894 all six had restored such bans. The trajectory of miscegenation laws in the Lower South between 1865 and 1900 permits a reconsideration of the range of possibilities the Reconstruction era brought to public policy. More than that, it forces a reconsideration of the origins of the Jim Crow South. Legally mandated segregation in public transit, as C. Vann Woodward observed in 1955, took hold late in the century. But such segregation in public education, as Howard R. Rabinowitz pointed out with his formula ‘from exclusion to segregation,’ originated during the first postwar years. Segregation on the marital front – universal at the start of the period and again at the end, but relaxed in most Lower South states for a time in between – combined the two patterns into yet a third. Adding another layer of complexity was the issue of where the color line was located, and thus which individuals were classified on each side of it. 

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Deciding on Doctrine: Anti-Miscegenation Statutes and the Development of Equal Protection Analysis

Virginia Law Review
Number 95, Issue 3 (May 2009)
pages 627-665

Rebecca Schoff
University of Virginia School of Law

In 1967, the Justices of the Supreme Court of the United States were in complete agreement that the statutory scheme before them in Loving v. Virginia, which criminalized interracial marriage, should be invalidated. They did not, however, agree on which legal doctrines justified the invalidation. Eight Justices signed on to an opinion that carefully hedged the question with arguments related to both the equal protection and the due process clauses. Justice Potter Stewart authored a terse concurring opinion asserting that there could be no valid state law “which makes the criminality of an act depend upon the race of the actor.” Although no other member of the Court was willing to sign on to this concurrence, it gave voice to a doctrine that had been a central argument of civil rights litigation, articulated as early as Justice [John Marshall] Harlan’s famed dissent in Plessy v. Ferguson.

This Note will explore why the Warren Court chose the path it did to invalidate anti-miscegenation laws. More generally, it will analyze the Warren Court’s treatment of anti-miscegenation statutes with the object of gaining perspective on the relationship between decision and doctrine: assuming that Justices are in agreement as to which party should prevail, what factors, legal and non-legal, can influence the Court’s preference for one doctrine over another? In Loving, the decision to reject Justice Stewart’s rationale had far-reaching consequences. Had the Court followed Justice Stewart’s reasoning, review of criminal statutes, at least, would not require even a cursory analysis of the legislature’s purpose once a racial classification was detected. It might be argued that the Court was simply seeking the narrowest grounds on which to decide the case and that Justice Stewart’s reasoning was simply too broad. Loving’s now-controversial place as a precedent supporting substantive due process analysis in right-to-marriage jurisprudence, however, would have been minimized, if not eliminated, by Justice Stewart’s approach. It may be difficult to predict the ramifications of doctrinal choices, particularly with respect to the interaction be-tween equal protection, due process, and fundamental rights. Ultimately, this Note will argue that the Warren Court showed a preference for a less rule-like approach to equal protection analysis, in part because the conditions surrounding desegregation exacer-bated the difficulty of analyzing the scope of rules. Dissecting the circumstances under which the Warren Court viewed its potential paths to a ruling against Virginia in Loving may help us to under-stand how and why the Court resolves such problems in particular ways…

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What Comes Naturally: Miscegenation Law and the Making of Race in America (Review)

Law and Politics Book Review
American Political Science Association
2009-03-23
pp. 218-220

Mark Kessler, Chair of the Department of History & Government and Professor of Government
Texas Woman’s Univeristy

What Comes Naturally: Miscegenation Law and the Making of Race in America. By Peggy Pascoe. (New York and London: Oxford University Press, 2009. 404 pages. Cloth ISBN13: 9780195094633, ISBN10: 0195094638)

In this highly original and important book, Peggy Pascoe describes and analyzes three centuries of laws in the United States prohibiting interracial marriages and sexual relations. In perhaps the most comprehensive and systematic study of legal marriage and sex prohibitions to date, Pascoe argues that these laws were central ideological tools used in constituting and reproducing white supremacy in the United States. Placing her study in its broadest context, she argues that examining the rise and decline of these laws “provides a locus for studying the history of race in America” (p.2). Pascoe’s study demonstrates how historical research, combined with critical cultural theory and analysis, may shed new light on significant questions regarding the power of law and legal interpretation in constructing and reconstructing social reality.

Throughout this work, the writing is admirably accessible, while the analyses and arguments are deeply nuanced. Pascoe begins many of the eleven chapters with stories describing the people and circumstances involved in miscegenation cases throughout history. These stories are carefully selected to show the great variation in characteristics of participants, laws, and regions of the country in which the cases arose, and to help address the broader questions of nation-building and nation-formation that emerge from this study. Pascoe uses these very human stories, along with landmark appellate court decisions and local legal practices, to explore the many and varied ways in which social and political relations based on race, gender, and sexuality illuminate the rise and fall of miscegenation law in the United States.

Pascoe’s narrative begins in the Reconstruction era, when the term “miscegenation” was first invented and applied to interracial marriage and sex. Her discussion focuses on the ways in which judges, legislators, and lawyers employed notions of what is “natural” and “unnatural” in conventional cultural discourses about sex, gender, and sexuality to create and apply laws prohibiting interracial marriage and sex. Such laws emerged first in the South and North and typically applied exclusively to relations between those categorized racially as “white” and as “black.”…

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The Virginia Racial Integrity Act Revisited: The Plecker-Laughlin correspondence: 1928-1930

American Journal of Medical Genetics
Volume 16, Issue 4
Pages 483 – 492
December 1983
DOI: 10.1002/ajmg.1320160407

Philip Reilly
University of Houston Law Center, Houston, Texas
 
Margery Shaw
University of Houston Law Center, Houston, Texas

Correspondence between Walter Ashby Plecker, Virginia State Registrar of Vital Statistics between 1912 and 1938, and Harry Hamilton Laughlin, Superintendent of the Eugenics Record Office at Cold Spring Harbor between 1910 and 1939, provides evidence of efforts to enforce the Virginia Racial Integrity Act of 1924. After antimiscegenation policy is placed in a historical context, excerpts from the letters are offered to demonstrate the zeal with which one state official pursued this eugenic policy.

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